City of Alameda Denies SunCal Charges in Public Records Lawsuit

September 30th, 2010

Yesterday, SunCal announced that they had filed a lawsuit against the City of Alameda under the California Public Records Act, claiming that Interim City Manager Ann Marie Gallant, City Clerk Lara Weisiger, “and other Alameda officials,” were conspiring to withhold and destroy public records that SunCal has requested as part of their U.S. Federal Court against the City. The City of Alameda responded by saying that SunCal’s charges are “demonstrably false.”

SunCal’s announcement of the lawsuit, filed in Alameda County Superior Court, came two days after they filed a claim with the City of Alameda for $117 million. Plaintiffs must file a claim with the City before proceeding to a lawsuit. In their claim, SunCal said that their local project entity, SCC Alameda Point LLC suffered losses of $17 million for out-of-pocket expenses and $100 million in lost profits when the City of Alameda effectively terminated their Exclusive Negotiation Agreement (ENA) with the Irvine-based developer. In a their court pleading, case number RG-10537988, which was apparently filed on September 22nd, SunCal’s attorney Louis Miller asserted that the City of Alameda is “concealing material documents…that the public at large has the right to see under the Public Records Act.”

SunCal also cited the investigation into the allegations of misconduct by City Councilmember Lena Tam and also a public records request for e-mails from various councilmembers by local blogger Lauren Do. Ms. Do is an Alameda resident described by City of Alameda Special Counsel Michael Colontuono as one of Ms. Tam’s “favorites,” in his investigation of Tam.

According to a summary of the California Public Records Act available on the website for Californians Aware, California Government Code Section 6259(d) provides that the court may award “reasonable attorney fees” to the plaintiff in a Public Records Act lawsuit. The statute makes no mention of awarding damages, so it seems likely that SunCal’s claim of $100 million in lost profits and $17 million in out-of-pocket expenses would not stand up to scrutiny in court; it’s likely that only SunCal’s legal costs in trying to get the records they have requested would be awarded. Indeed, while SunCal filed a claim with the City of Alameda for $117 million, and cited that figure in their press release, the $117 million figure isn’t mentioned in their court pleading. Instead, SunCal asked for attorneys’ fees, “costs of [the] suit,” and for the City to immediately produce copies of the documents requested by SunCal.

Late yesterday, the Alameda City Attorney responded to SunCal’s announcement with a statement provided to Action Alameda News:

SunCal’s Public Records Act lawsuit and its comments in this article are demonstrably false. The City has in fact produced over 20,000 pages of documents in response to a voluminous Public Records Act request that SunCal served upon the City shortly before filing their first lawsuit against the City of Alameda. Many of these documents are, in fact, emails, and many of these emails were sent to or received from Ann Marie Gallant and members of the City Council.

SunCal has also grossly mischaracterized how emails are handled in the City of Alameda. Contrary to SunCal, the City does not treat every single email in the Groupwise system as a “draft.” Emails concerning City business are public record unless some exemption under the Public Records Act applies. City staff and officials are advised that they are to retain, either in hard copy or in electronic form through archive, any emails which constitute official, public record documents, and it is the obligation of staff and officials to do so. All other emails will be deleted as part of the routine maintenance performed by IT in order to save server space, because such documents are not meant to be retained in the normal course and scope of City business–in other words, they are preliminary drafts, notes, or memos not normally retained by a public entity, as allowed by Government Code Section 6254(a) of the Public Records Act. SunCal has repeatedly been advised that the City is not deleting any relevant emails and in light of the pending litigation, has taken steps to preserve them; SunCal’s allegations to the contrary are reckless and false.

I’m attaching a copy of a letter sent today by the City’s outside counsel, David Newdorf, responding to some of the false allegations in SunCal’s Verified writ petition.

SunCal’s court pleading is reproduced below, and the letter from Mr. Newdorf, is available here.

29 comments to City of Alameda Denies SunCal Charges in Public Records Lawsuit

The distortions by SunCal and its supporters are never-ending. Now that S-C is officially an adversary of the City, and the taxpayers, we have all the more reason to be wary. The “SunCal Slate” of candidates is only one reason, and we can follow the influence of money to head them off at the pass in November — Gilmore, Tam and Bonta.

In the Alameda Sun today, there is also a scurrilous letter from one Richard Hausman taking me to task for writing a scurrilous letter to the Sun, and dissing them for publishing it. In his own letter, Hausman argues with my suggestion that “85% of Alameda voters kicked SunCal to the curb,” arguing that number is misleading, since a minority of those voters qualified actually did vote.

Yet people like Hausman will also claim that Measure E, the school parcel tax, got almost “two-thirds of the vote, only lost by 250 votes,” although only 50% of eligible Alameda voters bothered to vote on Measure E at all. I suppose, as usual, it depends on whose ax is being sharpened, and whose ox is being gored!

In the United Nations Security Council, representatives of the five countries holding a veto power (the United States, United Kingdom, France, Russia and the People’s Republic of China) sometimes abstain rather than vetoing a measure about which they are less than enthusiastic, particularly if the measure otherwise has broad support. By convention, their abstention does not block the measure, despite the wording of Article 27.3 of the United Nations Charter. If a majority of members of the United Nations General Assembly or one of its committees abstain on a measure, then the measure fails.
In the Council of the European Union, an abstention on a matter decided by unanimity has the effect of a yes vote; on matters decided by qualified majority it has an affect of a no vote.

Once again, Mr. Green makes scurrilous charges about a so-called “SunCal Slate” but offers no facts to support the charge that Gilmore, Tam or Bonta are receiving money or other support from SunCal. If he has facts, produce them; otherwise, is statements are just blather.

Somewhere, I still have a copy of the SunCal Measure B mailer listing Jon Spangler as an “advisor” to SunCal.

Tam and Bonta share the same campaign treasurer, Benajamin Reyes, of Alameda.

The survey, all the telephone push-polls skewed in favor of Tam/Bonta/Gilmore are all consistent with SunCal’s campaign tactics during Measure B. The campaign filings providing the “smoking gun” proof might not be available until after the election.

Even yesterday’s specious lawsuit by SunCal against the City, accusing the Interim City Manager of deleting public records, is intended to boost the fortunes of Tam and Gilmore, both of who have been deriding the ICM.

O, where are the worthy opponents? Where is the challenge? Hausman comes up with “blather” instead of logic and facts. All three of the SunCal Slate of candidates — Tam, Gilmore and Bonta — are on record, and have spoken out in debates, in support of SunCal. I don’t have to prove anything, when they have done so themselves. And as for Spangler, maybe he doesn’t have the chops to be paid by SunCal, but when he’s listed proudly as an “advisor” on their campaign literature, that pretty much confirms his position.

Let’s put Hausman on the defensive. Can he prove that he and these three are not now and have never been supporters of SunCal? The point isn’t even whether SunCal is supporting THEM, but whether they are supporters of SunCal, a much more relevant and dangerous prospect. Until I see such evidence, I shall presume none of them have changed their minds.

It’s the usual political knife-fight. My guess is that it’s a strategy worked out by SunCal to discredit the only two people in City government really working hard for the people’s best interests. This company will do ANYTHING! Do I believe for a moment that Tam, not the brightest light on the Xmas tree, dreamed up the notion to forward those emails to SunCal, all by herself? Nah. And Gilmore, on record as another SunCal partisan, just props up everything Tam does. We’re not going to be free of SunCal until we get free of them.

As for Hausman, he was very aggressive, demanding on another website that I deny my authorship of certain emails I did not write, but he’s curiously silent in regard to Spangler’s failure to deny his relationship with SunCal. It’s almost Shakespearean!

Literature from Gilmore, Tam and Bonta is all being simultaneously dropped by the same person. Pooling their resources, or SUNCAL’s? It is truly the SUNCAL slate. If they win, all taxpayers will be paying for is Tam and SUNCAL’s legal fees. And the ICM and CA’s legal fees and damage awards after SUNCAL makes Gilmore, Tam and Bonta fire them. Forget about fixing potholes and watering the grass in public parks.

Action Alameda, and the story to which there is a link, are correct that a SunCal entity Newhall County Water District upon being told there was not going to be enough for their project in Castaic.

What the linked story does not say that when the Newhall District Directors didn’t faint at the thought of their agency being sued, and hired a competent lawyer to defend the District, SunCal changed tactics.

As soon as a District election came around, SunCal put its money behind a brutal campaign of robo calls, hate mailers and other attacks on District Director Joan Dunn, who is one of the nicest, most precise and factual ladies you could ever meet. Even though Mrs. Dunn took the trouble to walk precincts to meet her constituents, the massive hate campaign, financed with money from SunCal’s partner Lehman Brothers was successful.

As soon as the SunCal backed candidate was sworn in, the Board majority changed, the majority voted to provide water to SunCal’s project, and SunCal’s lawsuit was dismissed.

As a result, the concerns of those who post here, in terms of what pro-SunCal candidates will do are well founded.

At the same time, the current wisdom of the current Alameda City Council’s vote not to extend the exclusive negotiation agreement was well founded for yet another reason. See the references to the current financial troubles of SunCal’s owner Bruce Elieff and to significant employee layoffs at D.E. Shaw:

As to that exclusive negotiation agreement, the “developer partner” was likely hobbled in its ability to get subdivision improvement bonds for everything from roads, to parks, to sewers, to sidewalks and street lights and the “money partner” is apparently having enough money problems to warrant a large and embarrassing staff cut.

Given those facts, you can probably assume that in closed session, the Council smelled trouble ahead. Good for them, in using common sense.

Mr. Green, Jon Spangler has already publicly stated that he had a relationship with SunCal but that he didn’t get paid for it: to wit: “The really sad part – for our meager household budget, at least – is that I have received absolutely zero income for all my efforts on behalf of Suncal and Peter Calthorpe’s plan, despite having tried to make it a paying gig. Suncal has fed me a few times, both at their public events and at the monthly advisory committee meetings we all attended. I still wonder whether Suncal, had they heeded my advice in 2009, might not have lost the chance to redevelop AP. (I recommended against submitting the original signatures and starting over with another initiative in the summer of 2009,and argued in vain against the “too-slick” mailers recommended by Larry Tramutola’s head writer during the fall campaign. The younger guy (30-ish) has since been fired from his job….”

So, Mr. Green, to quote Gordon Gekko: “I’ll make a deal with you: you stop telling lies, and I’ll stop telling the truth about you.”

Richard: If you’re really concerned with the truth, then start by addressing Vania’s very well informed comments above. You folks fall back on the same tactics all the time — you sidestep the major concerns which you can’t address and focus instead on blowing up trivial issues.

Do you understand what Vania is saying above about SunCal’s attempts to influence elections? We are seeing precisely the sasme tactics here, yet you don’t seem willing to recognize that.

Do you understand that SunCal is going under financially? If you do, then that ought to be your first concern, yet you haven’t addressed that issue at all. What “Mr. Green” has to say is entirely beside the point.

Once again, I have never received any pay or other financial compensation for my role as a member of SunCal’s advisory committee. Neither did any of the other volunteer members of SunCal’s advisory committee. All of us were properly called “advisors” for our unpaid service.

Why any of you keep raising untrue rumors when there are complex and important issues to resolve in Alameda is beyond me. I would have thought that you had better things to do than push red herring.

So once again Alameda is sold out by folks who are too stupid to actually ask for money up front. They do it for a few free meals, a little attention, and the hope that someday in the future they will reap their thirty pieces of siver.
Thanks for admitting it Mr. Spangler. With Halloween coming up, Alameda is in for nothing but SUNCAL tricks and No treats.

Jon – there are a lot of important issues to resolve. And depending on which camp one is in, one’s view of what those important issues are changes.

SunCal’s obvious involvement in this year’s election campaign is an important issue for many. Richard Hausman, in the Alameda Sun, challenged Dennis Green to provide proof of your involvement with SunCal in Measure B. So there it is, that’s why this has come up again. You may like to wish it away as a red herring, but for others, it goes a long way to explain why you support the City Council candidates you do.

If my challenges to Jon Spangler and Richard Hausman have smoked them out as SunCal partisans, I don’t think my comments are beside the point. Spangler endorses the SunCal Slate in the Sun, and, knowing of his association with SunCal, he will be discredited in the eyes of many voters. Good!

Likewise, Hausman, another SunCal partisan and apologist, needs to take a sobering look at his faith in that company and its attempts to manipulate Alameda politics. Measure B was defeated by a huge margin, and the SunCal Slate will go down in infamy as well. And Jon, it wasn’t just the slick mailers that tipped us off about SunCal.

After reading the WSJ story, thank you for the link Action Alameda, our City’s change of heart happened just in the nick of time. Good thing some of the press is covering the true story of SUNCAL. Why anyone would want anything to do with that entity is beyond me. We can only thank Gallant and Highsmith for showing the Council what a decision to do anything with SUNCAL really meant. Decades of litigation, with no public improvements ever funded.
I can’t believe that the SUNCAL slate of Gilmore, Tam and Bonta could even have the courage to say they support SUNCAL in any way shape or form before the election. It is better for them to pretend to proceed the way the City is now going, with a non-profit representing Alameda in this process. Then maybe later, Gilmore, Tam and Bonta will see that it really is better to keep the profits in house as opposed to sending them down to bail out the Elieffs. I understand why SUNCAL is funding campaigns, even so, there will not be enough profit at Alameda Point, to pay off all Elieff’s debt.

Here’s a story on “redevelopment” – SunCal was relying on $200 million of redevelopment tax increment financing to subsidize their Alameda Point plan.

“One state audit found that dozens of agencies had failed for years to share money with schools and counties, as required. Los Angeles County agencies shorted schools and services by at least $60 million in fiscal year 2005, a review by the state controller found in 2008.

Auditors also found that the City of Industry reported to the state that it gave $2.5 million to schools and the county in 2006. The problem was the payment should have been $21 million.

And when auditors sought more information, 14 of the county’s 74 agencies did not respond and 11 others admitted they did not follow the law.”

1. I favored transit-oriented development at AP long before SunCal showed up and still favor the Peter Calthorpe plan as an excellent one, with or without Suncal.

2. I have known and supported both Marie Gilmore and Lena Tam since before SunCal (Gilmore since 1999-2000) and still support them whether or not Suncal is in Alameda.

In any case, none of the candidates now running want anything to do with Suncal, which will never be the master developer at AP. So why is SunCal’s ghost occupying so much of your collective bandwidth? Suncal made lots of preventable and insurmountable errors – as did the City Council and city staff.

The question is: have we learned anything? Apparently not yet, at least in some quarters.

Anonymous (bravely standing up for her/his convictions and owning responsibility for her/his words) questions my relative intelligence for voluntarily (freely) doing things for my community like attend planning workshops, City Council meetings, etc. I can only respond by saying that money (or recognition or favors or food) is not everything in this life for me.

What I do as a volunteer here (including 3 years as a noon supervisor at Franklin Elementary) is my own contribution to help make Alameda a better place in which to live, work, play, study, and grow up. You may disagree with my vision of what Alameda should look like, but that’s why I am involved. And I’m not waiting around to reap the economic rewards (“thirty pieces of silver”) of anyone’s election, either.

I am still waiting to see any evidence at all that SunCal is actually playing any financial role whatsoever in this Alameda election – that is, outside of someone’s conspiracy theories.

You know: campaign finance reports, that sort of thing. There is no evidence, unless you have some and are choosing to keep it a secret….

Jon, you certainly don’t have a monopoly on community volunteer work, and some of us have been even more active far longer here than you have. We don’t need to prove anything to you about our love for Alameda, and find your attitude insulting. Neither do we need to prove that SunCal is directly supporting any of the candidates on the SunCal Slate. It’s enough for me to know that you and all of the Slate candidates are on record as supporting SunCal.

And it is disingenuous for you to claim that SunCal is “outta here.” Their lawsuits, bogus and real, prove they are not, and they have a history of scorning losses such as the one-sided Measure B outcome in March. And if they are a “ghost” or dead horse, why is your cohort David Hausman, in his letter to the Sun, undercutting the results of that election? You have been discredited as a pretender to objectivity, and now you’re just making things worse by your claims and obfuscations. Stop digging.

Why would anyone support GILMORE after she failed to report her buddy TAM for cheating the Brown Act by blind copy emailing her instead of keeping public actions open and transparent? And she recently tried to circumvent the negotiations with the firefighters by demanding a vote on the contract in open session. Union and other pay negotiations are specifically set forth to be conducted in closed session for a reason. I understand why no Councilmember in their right mind would want to go into closed session with TAM on the Council, but why ask the council to just vote in public? Especially after she was endorsed by the firefighters? She knew it wouldn’t/couldn’t pass and was just staging a publicity stunt for the firefighters. SUNCAL has paid for a survey and are pulling her strings to pick up votes. Where will the City end up if she is elected Mayor and is beholden to the firefighters, SUNCAL and whatever other interests have paid for her services? She will get to appoint all of SUNCAL’s attorneys and driectors to the Planning Board, the Civil Sevice Retirement Board, everything. Think about it. SUNCAL can simply feed what it wants done to GILMORE, TAM and BONTA, and they will do it from the bottom up. Public sentiment and vote will mean nothing. They do not respect the voters or the quality of life that the citizens enjoy in Alameda. They respond only to SUNCAL and money.

Councilmembers take an oath of loyalty to the people. Not SUNCAL, not the firefighters. It is very nice of Mr. Spangler to “volunteer” as a lunchtime supervisor at Frankliln, but I suspect his children are in that lunch crowd. Why not go to Washington, or Wood a school where supervisors are really needed?

Jon – you can stick to your talking points as tenaciously as you like. But the fact is, it’s not necessary for you to admit to SunCal’s machinations behind the scenes.

There is enough circumstantial evidence readily at hand and public for any reasonable reader – one who didn’t try, and fail, to get paid by SunCal for his or her support of them – to reach a logical conclusion.

Anybody who persists in supporting SunCal ought to stop and consider where the money’s going to come from. Never mind that SunCal is a risk for the city — they’re a risk for financial backers as well. They’re hopelessly tangled up in the legal mess with Lehman, and they have nowhere to go but down. With Elieff on the hook for the $230 million in bond guarantees, nobody will go out on a limb to back them.

Shaw won’t do it — we already know that. They failed to back SunCal in Alburquerque, and they won’t back them here either.

No one is supporting Suncal. The only reason Suncal is suing and has even a possibility of winning is because of the missteps of the ICM and the City Attorney, both of whom just unsuccessfully spent $100,000 of the City’s money in legal fees to get Lena Tam. Isn’t that even a little bit of a concern to you?

Tam, Gilmore and Johnson are going to win whether you like it or not. None of them are supported by Suncal although Johnson did take $10,000 to steer a golf course property to Ron Cowan. And Suncal will not be a developer of the base. The real problem Alameda has is ending up like Half Moon Bay and losing all their city services because of a miscalculation by the City in taking on a developer. Can’t wait until the ICM and City Attorney get fired.

Hot R- I think it’s only you, and SunCal/Tam supporters who are bothered by the money spent on the special counsel to investigate Lena Tam. But even you yourself said that you didn’t condone her behavior, even if you didn’t think it was illegal.

For many people, it sure looks like what Tam did, prima facie, was illegal. So, no, not many are bothered by the money.

SunCal’s suits are meritless, and the only intent is to have something for the SunCal slate – Tam, Bonta and Gilmore – to “settle” by bringing them back into the Alameda Point project, after the election.

It’s obvious that SunCal is active in the election – they pulled the same moves with the New Hall County Water District in the past, and in Albuquerque, New Mexico. SunCal gave $5,000 to Ronald Mooney earlier this year, and he used that money, with additional funds, to purchase some services with EMC Research, an Oakland based political polling/research firm.

Tam is obviously still backed by SunCal, to whom she leaked confidential documents to. And Bonta is tied to the hip with Tam – they share campaign staff, consultants, a campaign treasurer, etc.

The SUNCAL slate is GILMORE, TAM & BONTA. It appears that after paying for a survey of voter turnout, that SUNCAL is now buying the firefighters, to take on GILMORE’s major opponent. Sorry Daysog and Matarrese. You meant well. A vote for either of these candidates is a vote for SUNCAL by default. SUNCAL’s survey shows that the candidate to beat is DeHaan. So the money goes to defeat DeHaan. Johnson and Sweeney are the major opponents. If there is a third seat on the Council, I hope it goes to Adam Gillitt. He is a fresh face and an educated newcomer. He has been quick to see what is going on. If not this time, maybe next election. The man deserves some consideration.